Citation NR: 9607829
Decision Date: 03/26/96 Archive Date: 04/10/96
DOCKET NO. 94-20 307 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for post traumatic
stress disorder (PTSD).
2. Entitlement to an increased disability evaluation for
history of concussion with headaches, currently evaluated as
10 percent disabling.
3. Entitlement to an increased disability evaluation for
residuals of fracture, upper left tibia, with knee and ankle
involvement, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: William G. Smith, Attorney at
Law
WITNESSES AT HEARING ON APPEAL
Appellant and Dr. McCoy
ATTORNEY FOR THE BOARD
J.W. Engle, Counsel
INTRODUCTION
The appellant served on active duty from September 1965 to
October 1970. He served in Vietnam from August 21, 1967 to
July 5, 1968 and his military occupational specialty (MOS)
during that tour of duty was 76Y20, Supply Clerk and 71B20,
Medical Records Specialist. His awards include the Bronze
Star Medal with V device awarded in February 1968 for heroism
in connection with military operations against a hostile
force.
During the pendency of this appeal, the Hearing Officer, in
his November 1992 decision, granted service connection for
traumatic arthritis of the left knee as part of the service-
connected left tibia fracture residuals. The RO implemented
this decision by rating action dated in November 1992.
The Board will consider the relative merits of the
appellant’s claim to service connection for PTSD. With
respect to the issue of entitlement to an increased
disability evaluation for history of concussion with
headaches and fracture of the upper left tibia with traumatic
arthritis of the left knee and ankle symptoms, these claims
are the subject of a remand immediately following this
decision. See 38 C.F.R. § 19.9 (1995); see also Chairman’s
Memorandum, No. 1-95-17 (July 21, 1995).
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that as a result of the
incident in which he aided two severely wounded Vietnamese
civilian employees during a hostile mortar attack on the Phu
Lam Signal Battalion Compound, for which he was awarded the
Bronze Star Medal with V device, coupled with other
unverified events during his tour of duty in Vietnam, he has
developed PTSD. He further argues that his service-connected
headaches should be evaluated pursuant to Diagnostic Code
8100, as migraine headaches, and thereby assigned a higher
disability evaluation taking into account the frequency of
his headache symptomatology. In addition, he has asserted
that a higher disability evaluation is warranted for his
service-connected left leg disorder and that there should be
a separate rating for the left knee disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file(s). Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is in favor of the appellant’s claim to service
connection for PTSD.
FINDINGS OF FACT
1. The service records reflect that the appellant was
awarded the Bronze Star Medal with V device in February 1968
for heroism in connection with military operations against a
hostile force.
2. Post service medical records reflect that the appellant
was seen at the Vietnam Veterans Center in October 1989 and
started weekly group counseling for PTSD at that time.
3. A VA psychiatric examination report dated in June 1990
noted a diagnosis of alcohol and cocaine abuse.
4. A statement from a clinical social worker dated in July
1991 noted a diagnosis of PTSD.
5. A psychiatric consultation report covering interviews
held on July 23, August 2, 8, 15 and 23, 1991, from the Chief
of Mental Health Care, Austin Satellite VA Outpatient Clinic,
reflects a diagnosis of PTSD with secondary cocaine and
alcohol abuse.
6. In November 1991, on VA psychiatric examination, a
diagnosis of polysubstance abuse was noted and the board of
two examiners commented that while the appellant’s
symptomatology may fulfill the criteria for PTSD, in their
opinion those symptoms are more related to the appellant’s
baseline character and to his persistent substance abuse over
a long time than due to his experiences in Vietnam.
7. In testimony at the February 1994 hearing before a Member
of the Board, the appellant’s treating VA psychiatrist
diagnosed the appellant with PTSD.
CONCLUSION OF LAW
PTSD was incurred during service. 38 U.S.C.A. § 1110, 5107
(West Supp. 1995); 38 C.F.R. § 3.304(f) (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the appellant’s claim to
service connection for PTSD is well grounded based upon the
evidence of record including his service in Vietnam, various
diagnoses of PTSD, and a stressor, as evidenced by his award
of the Bronze Star Medal with V device. 38 U.S.C.A. §
5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78
(1990).
Service Connection for PTSD
With regard to PTSD, VA regulations recognize that symptoms
attributable to PTSD often do not appear in service. Service
connection for PTSD requires medical evidence establishing a
clear diagnosis of the condition, credible supporting evidence
that the claimed inservice stressor actually occurred, and a
link, established by medical evidence, between current
symptomatology and the claimed inservice stressor. If the
claimed stressor is related to combat, service department
evidence that the veteran engaged in combat or that the
veteran was awarded the Purple Heart, Combat Infantryman
Badge, or similar combat citation will be accepted, in the
absence of evidence to the contrary, as conclusive evidence of
the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1993).
In adjudicating the appellant’s claim to service connection
for PTSD, the Board looks to the case of Zarycki v. Brown, 6
Vet.App. 91 (1993), where the United States Court of Veterans
Appeals (Court) set forth the framework for establishing the
presence of a recognizable stressor, which is the essential
prerequisite to support the diagnosis of PTSD. The Court
analysis divides into two major components: The first
component involves the evidence required to demonstrate the
existence of an alleged stressful event; the second involves
a determination as to whether the stressful event is of the
quality required to support the diagnosis of PTSD.
The administrative records now on file reflect that the
appellant served in the Republic of Vietnam from August 21,
1967 to July 5, 1968 and that in February 1968, he was
awarded the Bronze Star Medal with V device for heroism in
connection with military operations against a hostile force.
Specifically, the appellant was noted to have distinguished
himself during a hostile mortar attack on the Phu Lam Signal
Battalion Compound by heroic conduct in aiding two severely
wounded Vietnamese civilian employees. The award order
indicated that with complete disregard for his own safety,
the appellant ran through the rain of mortar fire to these
wounded individuals and helped carry them to shelter. He
improvised first aid and raised the call for medical
assistance.
In view of the above, the Board concludes that the appellant
has adequately established the presence of a recognizable
“stressor.”
In West v. Brown, 7 Vet.App. 70 (1994), the Court elaborated
on the analysis in Zarycki. In Zarycki, the Court held that
in addition to demonstrating the existence of a stressor, the
facts must also establish that the alleged stressful event
was sufficient to give rise to PTSD. Id. at 98-99. In West,
the Court held that the sufficiency of the stressor is a
medical determination, and therefore adjudicators may not
render a determination on this point in the absence of
independent medical evidence.
Review of the medical evidence of record reveals various
diagnoses including PTSD and polysubstance abuse. However,
the Board notes that while the appellant has reported the
presence of numerous stressors over the course of numerous
mental health examinations and consultations, which are
uncorroborated by the objective evidence of record, he also
has consistently recited the events summarized above which
led to the award of the Bronze Star Medal as a source of his
PTSD symptomatology. Based upon his recitation of
symptomatology, including the above, the appellant has been
diagnosed with PTSD in December 1989, July 1991, and February
1994, in contrast to diagnoses of alcohol/cocaine abuse in
June 1990 and polysubstance abuse in November 1991. When
evaluating the probative value of the evidence of record, the
Board concludes that greater weight of the evidence is to be
assigned to the diagnoses of PTSD entered by R. Cano, MSW, in
a statement dated in February 1990, reflecting diagnosis
based upon weekly counseling since December 1989, the
statement from D. Navarre, CSW-PR dated in July 1991,
reflecting the diagnosis based upon ten counseling sessions,
the examination report from Dr. Feir, Chief of Mental Health
Care, Austin Satellite VA Outpatient Clinic, reflecting the
diagnosis based upon five interviews with the appellant in
July and August 1991, and the testimony from Dr. McCoy, the
appellant’s treating VA psychiatrist, provided at the hearing
before Member of the Board in February 1994, reflecting
treatment over a period of two years.
In reaching this conclusion, the Board has placed particular
emphasis upon the findings noted by Dr. Feir which included a
reconciliation of the diagnosis of PTSD with concomitant
alcohol and drug abuse and the previous diagnosis of drug and
alcohol abuse noted on VA examination in June 1990. Dr. Feir
commented that:
...PTSD has a yet poorly understood
neurobiological basis or correlation and
is usually combined with other clinical
entities-depression, panic attacks,
obsessive compulsive behaviours or drug
and alcohol abuse. The fact that 60-80%
of patients with PTSD have concurrent
diagnoses of substance abuse further
underscores the notion that individuals
with PTSD are likely to be susceptible to
alcohol and illicit drug use.
In view of the above, the Board concludes that the evidence
of record demonstrates the existence of an alleged stressful
event, as verified by the award of the Bronze Star Medal with
V device and that the stressful event has been found to be of
the quality required to support the diagnosis of PTSD.
Accordingly, entitlement to service connection for PTSD is
warranted.
ORDER
Service connection for PTSD is granted.
REMAND
Further review of the record reveals that additional medical
development is necessary with regard to the appellant’s
claims to increased disability evaluations for history of
concussion with headaches and fracture of the upper left
tibia with traumatic arthritis of the left knee and ankle
symptoms. With respect to the history of concussion with
headaches, the appellant, through his representative has
requested that this disability be evaluated as analogous to
migraine headaches pursuant to Diagnostic Code 8100, which
provides for increased disability evaluations based upon
frequency of migraine-like symptoms, as opposed to the
currently assigned Diagnostic Codes 8045-9304, brain disease
due to trauma, which provides, in pertinent part, that purely
subjective complaints such as headache, dizziness, insomnia,
etc., recognized as symptomatic of brain trauma, will be
rated 10 percent and no more under Diagnostic Code 9304.
Ratings in excess of 10 percent for brain disease due to
trauma under Diagnostic Code 9304 are not assignable in the
absence of a diagnosis of multi-infarct dementia associated
with brain trauma. While the record does not reflect any
objective medical evidence of multi-infarct dementia, there
are various diagnoses of record with respect to the
appellant’s headaches. In September 1990, during an
examination conducted for the purposes of participation in
the VA’s Agent Orange Registry, a diagnosis of vascular
migraine headaches probably secondary to closed head injury
as the result of a motor vehicle accident was noted; on VA
examination in July 1990, a diagnosis of closed head injury
with residual headaches was noted; VA outpatient examination
in July 1991 noted a diagnosis of vascular headaches; VA
examination in October 1991 noted a diagnosis of history of
concussion with headaches; VA examination in November 1991
noted a diagnosis of post concussion headaches versus
migraine headaches; and VA outpatient treatment reports dated
in December 1991 and February 1992 reflect diagnoses of
tension/vascular headaches.
In view of the above, the Board concludes that reconciliation
of the various diagnoses of record and comment on the
appellant’s current headache diagnosis and etiology would be
helpful in this case in light of the appellant’s request to
characterize the headaches as migraine in nature.
Furthermore, during the pendency of this appeal, the United
States Court of Veterans Appeals (Court) decided Deluca v.
Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held
that 38 C.F.R. §§ 4.40, 4.45 (1995) were not subsumed into
the diagnostic codes under which a veteran’s disabilities are
rated. Therefore, the Board has to consider the “functional
loss” of a musculoskeletal disability under 38 C.F.R. § 4.40
(1995), separate from any consideration of the veteran’s
disability under the diagnostic codes. DeLuca, 8 Vet.App.
202, 206 (1995). Functional loss may occur as a result of
weakness or pain on motion of the affected body part.
38 C.F.R. § 4.40 (1995). The factors involved in evaluating,
and rating, disabilities of the joints include: weakness;
fatigability; incoordination; restricted or excess movement
of the joint; or pain on movement. 38 C.F.R. § 4.45 (1995).
These factors do not specifically relate to muscle or nerve
injuries independently of each other, but rather, refer to
overall factors which must be considered when rating the
veteran’s joint injury. DeLuca, 8 Vet.App. 202, 206-07
(1995). Review of the record reflects no comment no comment
regarding functional loss attributable to the reported pain
on motion in the left lower extremity. In addition, the
appellant has requested consideration of a separate rating
for the traumatic arthritis of the left knee.
Accordingly, in view of the above, and in an effort to fully
assist the appellant in the development of his case, and
thereby extend to the appellant every equitable
consideration, this case is REMANDED for the following
action:
1. The appellant and his representative
should be provided the opportunity to
submit additional argument and evidence
in support of his claims
2. The appellant should be scheduled for
VA neurologic and orthopedic examinations.
The claims folder and a copy of this
remand must be made available and reviewed
by the examiners prior to the
examinations. The examinations is to be
conducted in accordance with the VA
Physician’s Guide for Disability
Evaluation Examinations. All necessary
tests should be conducted, including
diagnostic radiography such as x-rays,
myelograms, MRI, and CT scans which the
examiners deem necessary. The examiners
should review the results of any testing
prior to completion of the report.
With respect to the neurologic
examination, the examiner’s attention is
directed to the various headache diagnoses
of record including closed head injury
with residual headaches in July 1990,
vascular migraine probably secondary to
closed head injury in September 1990,
vascular headaches in July 1991, history
of concussion with headaches in October
1991, post traumatic headaches versus
migraine headaches in November 1991, and
tension/vascular headaches in December
1991 and February 1991. The examiner is
requested to comment on the presence of
multi-infarct dementia and provide an
opinion as to the current nature and
extent of the service-connected history of
concussion with headaches. The current
diagnosis regarding the appellant’s
headaches and the etiology of that
diagnosis should be provided. In that
regard, the examiner’s attention is
directed to the appellant’s sworn
testimony in February 1994 in which he
dated his headaches to the motor vehicle
accident during service when he sustained
a concussion. In determining the severity
of the headaches, the examiner should
obtain a complete history from the veteran
as to frequency, duration, location,
intensity and treatment. A complete
rationale for all conclusions reached
should be included within the requested
opinion.
On orthopedic examination, the report of
examination should be comprehensive and
include a detailed account of all
manifestations of residuals of fracture of
the upper left tibia with traumatic
arthritis of the left knee and ankle
symptoms. The orthopedist should provide
complete rationale for all conclusions
reached.
a. With respect to the functioning of
the veteran’s left knee and ankle,
attention should be given to the
presence or absence of pain, any
limitation of motion, swelling, muscle
spasm, ankylosis, crepitus, deformity
or impairment. The examiner should
provide complete and detailed
discussion with respect to any
weakness; fatigability; incoordination;
restricted movement; or, of pain on
motion. The examiner should provide a
description of the effect, if any, of
the veteran’s pain on the function and
movement of his left knee an ankle.
See DeLuca v. Brown, 8 Vet.App. 202
(1995); See 38 C.F.R. § 4.40 (1995)
(functional loss may be due to pain,
supported by adequate pathology). In
particular, it should be ascertained
whether there is additional motion lost
due to pain on use or during
exacerbation of the disability.
b. The examiner is requested to
comment on the degree of limitation on
normal functioning caused by pain.
Range of motion testing should be
conducted to include the left knee and
ankle. The examining orthopedist
should specify the results in actual
numbers and degrees. The examiner
should also indicate the normal range
of motion for the areas tested and how
the veteran’s range of motion deviates
from these norms.
3. Following completion of the
foregoing, the RO must review the claims
folder and ensure that the development
has been completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
4. In the event the determination remains adverse
to the appellant, both he and his representative
should be furnished a Supplemental Statement of the
Case, containing any new evidence and citing
applicable diagnostic and regulatory criteria, and
be given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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